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Compte enrere

19 d’abr. 2019

A supposedly, unsigned legal opinion requested by Sre. Tajani

This is part of a document written by an unknown person of an unknown institution, and apparently addressed to another unknown person.The author refers to the Legal Service of an unknown institution and there is no evidence that the document has at any time been drafted, seen or officially endorsed by any unit in the European Parliament. Click here if need be to access the whole text

[...]

Subject: Note on EP elections in Spain and immunity of
MEPS

I. Introduction

1. On 25 March 2019, the Legal Service received a request from the
President for a note on EP elections in Spain and immunity of newly
elected MEPs.

2. The request, concerns the legal situation of candidates running
for EP elections in Spain who are presently subject to national
criminal proceedings. Of particular interest is the extent to which
these candidates may claim parliamentary immunities. This note
focuses on the main elements of both EU and Spanish law given that
the electoral procedure is governed by the national electoral law. It
should be recalled that the actual procedural steps would depend on
the concrete circumstances in which they were taken and that the
subsequent decisions of the different actors involved cannot be fully
anticipated at this stage.

3. As regards parliamentary immunities in the EU, it is important to
underline that only Article 9 of the Protocol of the Privileges and
Immunities of the European Union is relevant for this analysis. The
protection of opinions expressed in the exercise of an MEP's duties
by virtue of Article 8 PPI only starts with the mandate. The
situation at stake refers, however, to facts taking place before the
beginning of the European mandate and for which national proceedings
are still pending.

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II. Assessment. Parliamentary immunity and procedure for the
acquisition of the parliamentary mandate in the EP for candidates
elected in Spain

a) Procedural steps to acquire the status of MEP for candidates
elected in Spain

4. Article 210 bis of the Organic Law on the Electoral Regime
provides that persons condemned to a prison sentence cannot run for
elections, if the judgement is no longer subject to appeal or, in the
context of certain crimes including rebellion, even if the judgement
is subject to appeal. A contrario, persons subject to
preventive measures or under arrest can run for the EP elections if
the other general conditions are met.

5. According to Article 224 of the Organic Law on the Electoral
Regime:

"1. The Central Electoral Committee shall proceed, no later
than 21 days after the election, to the vote count at national level,
the attribution of seats for each candidacy and to the proclamation
of the elected persons.

2. Within five days of their proclamation, elected candidates
shall pledge their oath of allegiance to the Constitution before the
Central Electoral Committee."

6. In practice, the Central Electoral Committee has understood this
provision as the need for the physical presence of the candidate at
the Central Electoral Committee in Madrid to proceed to the pledge of
office. This is a constitutive requirement for the inclusion of the
person in the list to be communicated to the EP in accordance with
Article 12 of the Act on Direct Elections and Rule 3 RoP. In this
regard, it must be noted that candidates in prison have been awarded,
in the past, penitentiary leave with the sole objective of fulfilling
this procedure at the Central Electoral Committee. However, the
Spanish courts have decided this on a case-by-case basis and
depending on the concrete circumstances.i

7. Once the list of elected MEPs are communicated to the EP the
general procedure and conditions for all MEPs apply, that is, Rule
3(2) of the EPs Rules of Procedure:

"Members whose election has been notified to Parliament shall
declare in writing, before taking their seat in Parliament, that they
do not hold any office incompatible with that of Member of the
European Parliament within the meaning of Article 7 (1) or (2) of the
Act of 20 September 1976. Following general elections, the
declaration shall be made, where possible, no later than six days
prior to Parliament's first sitting following the elections. Until
such time as Members' credentials have been verified or a ruling has
been given on any dispute, and provided that they have previously
signed the above-mentioned written declaration, they shall take their
seat in Parliament and on its bodies and shall enjoy all the rights
attaching thereto."

8. The requirement of the declaration that there is no
incompatibility is normally signed in Brussels at the EP premises.
However, there is no explicit rule that provides for such presence
and there

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have been exceptions to this, for instance, an MEP signing his
declaration in the BP office in Helsinki.

9. Finally, it is to be noted that the Spanish legislation determines
the incompatibility of the office of Member of a regional assembly
with the office of MEP (Article 221 (2)( d) of the Organic Law on the
Electoral Regime). An elected Member of a regional assembly who is
later elected as an MEP may resign from his regional mandate to take
up his regional mandate.

10. Pursuant to Article 9 of the Protocol on the Privileges and
Immunities of the European Union

"During the sessions of the European Parliament, its Members
shall enjoy:

(a) in the territory of their own State, the immunities accorded
to members of their parliament;

(b) in the territory of any other Member State, immunity from any
measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling
to and from the place of meeting of the European Parliament. ·

Immunity cannot be claimed when a Member is found in the act of
committing an offence and shall not prevent the European Parliament
from exercising its right to waive the immunity of one of its
Members."

11. The sessions of the European Parliament start at the opening of
the first session following each election, in accordance with Article
5 of the Act on the Elections to the European Parliament of 1976.

"l. The five-year term for which members of the European
Parliament are elected shall begin at the opening of the first
session following each election.

(..)

2. The term of office of each member of the European Parliament
shall begin and end at the same time as the period referred to in
paragraph 1."

12. In accordance with Rule 146 RoP, the protection under Article 9
PPI will deploy its effects for the newly elected MEPs as from 2 July
2019 at 10.00 a.m.

13. It is worth noting that although immunity protected under Article
9 PPI relies on national law as regards its material scope, the
period covered by its protection is an element determined by EU law
alone, as the Court of Justice stated in Wybot/Faure.ii

14. This limitation in time of the parliamentary immunity to the
sessions of the BP is a logical consequence of the functional
character of immunity granted under Article 9 PPL Indeed, as Rule
5(2) of Parliament's Rules of Procedure underlines "Parliamentary
immunity is not a

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Member's personal privilege but a guarantee of the independence of
Parliament as a whole, and of its Members."

15. In the event that the candidate became an MEP and the national
authorities requested the waiver of his immunity, the file would have
to be analysed by JURI based on Article 9 PPL. According to the
practice of JURI, immunity should be waived unless it appears that
the intention underlying the legal proceedings may be to damage a
Member's political activity and thus Parliament's independence (fumus
persecutionis).iii
This must relate to the MEP's political activity as such, and not to
his activity in the regional or national political sphere.

c) Parliamentary immunity in Spain

16. The immunity granted to Spanish Members of Parliament is very
wide. As established in Article 71 of the Constitution:

"Members of Congress and Senators shall enjoy freedom of
speech for opinions expressed in the exercise of their functions.
During their term of office, Members of Congress and Senators shall
likewise enjoy freedom from arrest and may be arrested only in the
event of flagrante delicto. They may be neither indicted nor tried
without prior authorization of their respective House."

17. This means that MEPs elected in Spain enjoy a full Article 9 PPI
immunity from any measures of arrest and from indictment and trial
against them. These measures shall be suspended until the immunity is
lifted or the mandate expires.

18. It is important to note that according to the Rules of Procedure
of the Congreso de los Diputados, Article 20(2) provides that
the beginning of the mandate be set at the constitutive session of
the newly elected Parliament, but that the prerogatives of MPs
(including immunities) shall already take effect on the date that the
candidates are proclaimed elected. This rule setting retroactive
effects for the sake of the immunity protection is not applicable to
MEPs elected in Spain, as argued in the previous section.

III. Conclusions

19. In the case in question, a candidate under a national arrest
warrant in Spain may run as candidate for the EP elections in Spain.
His presence in Madrid is required in order to take the pledge of the
Spanish constitution and thus be included in the list communicated by
the Spanish authorities to the European Parliament. If he were
arrested when doing so, the Spanish judicial authorities could still
give him permission to do such taking of the pledge. Whether this
permission is given depends on the Spanish judicial authorities.

[unsigned]

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i ATSJ
NA 1/1987, Tribunal Superior de Justicia de Navarra, de 21 de
febrero de 1987, regarding a member of the Basque Parliament. More
recently, in the context of other Catalan leaders regarding the
events of 2017, the Supreme Court adopted the position of
facilitating the pledge by other means than the presence in the
Electoral Committee, although the requirements for a regional
mandate are different then the requirement for an MEP – see ATS
5/2018, de 12 de enero, Tribunal Supremo.